5368
=U3= UTit1 -- Subtitle 1 General provisions
--
=U4= Sec433 -- Section 433 Typical contractual duties in a purchase agreement
--
=S=> BGB 433. 1 By a purchase agreement , the seller of a thing is obliged to deliver the thing to the buyer and to procure ownership of the thing for the buyer . The seller must procure the thing for the buyer free from material and legal defects .
=S=> BGB 433. 2 The buyer is obliged to pay the seller the agreed purchase price and to accept delivery of the thing purchased .
=U4= Sec434 -- Section 434 Material defects
--
=S=> BGB 434. 1 The thing is free from material defects if , upon the passing of the risk , the thing has the agreed quality . To the extent that the quality has not been agreed , the thing is free of material defects if it is suitable for the use intended under the contract , if it is suitable for the customary use and its quality is usual in things of the same kind and the buyer may expect this quality in view of the type of the thing . Quality under sentence 2 no . 2 above includes characteristics which the buyer can expect from the public statements on specific characteristics of the thing that are made by the seller , the producer ( section 4 ( 1 ) and ( 2 ) of the Product Liability Act [ Produkthaftungsgesetz ] ) or his assistant , including without limitation in advertising or in identification , unless the seller was not aware of the statement and also had no duty to be aware of it , or at the time when the contract was entered into it had been corrected in a manner of equal value , or it did not influence the decision to purchase the thing .
=S=> BGB 434. 2 It is also a material defect if the agreed assembly by the seller or persons whom he used to perform his obligation has been carried out improperly . In addition , there is a material defect in a thing intended for assembly if the assembly instructions are defective , unless the thing has been assembled without any error .
=S=> BGB 434. 3 Supply by the seller of a different thing or of a lesser amount of the thing is equivalent to a material defect .
=U4= Sec435 -- Section 435 Legal defects
--
=S=> BGB 435 The thing is free of legal defects if third parties , in relation to the thing , can assert either no rights , or only the rights taken over in the purchase agreement , against the buyer . It is equivalent to a legal defect if a right that does not exist is registered in the Land Register .
=U4= Sec436 -- Section 436 Public charges on plots of land
--
=S=> BGB 436. 1 Unless otherwise agreed , the seller of a plot of land is obliged to bear public services development charges and other municipal development charges for measures the construction of which began before the contract was entered into , irrespective of the point of time when they became payable .
=S=> BGB 436. 2 The seller of a plot of land is not liable for the land being free from other public levies and other public charges that are not suitable to be entered in the Land Register .
=U4= Sec437 -- Section 437 Rights of buyer in the case of defects
--
=S=> BGB 437 If the thing is defective , the buyer may , provided the requirements of the following provisions are met and unless otherwise specified , under section 439 , demand cure , withdraw from the agreement under sections 440 , 323 and 326 ( 5 ) or reduce the purchase price under section 441 , and under sections 440 , 280 , 281 , 283 and 311a , demand damages , or under section 284 , demand reimbursement of futile expenditure .
=U4= Sec438 -- Section 438 Limitation of claims for defects
--
=S=> BGB 438. 1 The claims cited in section 437 nos . 1 and 3 become statute-barred in thirty years , if the defect consists a)a real right of a third party on the basis of which return of the purchased thing may be demanded , or b)some other right registered in the Land Register , in five years a)in relation to a building , and b)in relation to a thing that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building , and otherwise in two years .
=S=> BGB 438. 2 In the case of a plot of land the limitation period commences upon the delivery of possession , in other cases upon delivery of the thing .
=S=> BGB 438. 3 Notwithstanding subsection ( 1 ) nos . 2 and 3 and subsection ( 2 ) , claims become statute-barred in the standard limitation period if the seller fraudulently concealed the defect . In the case of subsection ( 1 ) no . 2 , however , claims are not statute-barred before the end of the period there specified .
=S=> BGB 438. 4 The right of withdrawal referred to in section 437 is subject to section 218. Notwithstanding the fact that a withdrawal is ineffective under section 218 ( 1 ) , the buyer may refuse to pay the purchase price to the extent he would be so entitled on the basis of withdrawal . If he makes use of this right , the seller may withdraw from the agreement .
=S=> BGB 438. 5 Section 218 and subsection ( 4 ) sentence 2 above apply with the necessary modifications to the right to reduce the price set out in section 437.
=U4= Sec439 -- Section 439 Cure
--
=S=> BGB 439. 1 As cure the buyer may , at his choice , demand that the defect is remedied or a thing free of defects is supplied .
=S=> BGB 439. 2 The seller must bear all expenses required for the purpose of cure , in particular transport , workmen's travel , work and materials costs .
=S=> BGB 439. 3 Without prejudice to section 275 ( 2 ) and ( 3 ) , the seller may refuse to provide the kind of cure chosen by the buyer , if this cure is possible only at disproportionate expense . In this connection , account must be taken in particular , without limitation , of the value of the thing when free of defects , the importance of the defect and the question as to whether recourse could be had to the alternative kind of cure without substantial detriment to the buyer . The claim of the buyer is restricted in this case to the alternative kind of cure ; the right of the seller to refuse the alternative kind of cure too , subject to the requirements of sentence 1 above , is unaffected .
=S=> BGB 439. 4 If the seller supplies a thing free of defects for the purpose of cure , he may demand the return of the defective thing in accordance with sections 346 to 348.
=U4= Sec440 -- Section 440 Special provisions on withdrawal and damages
--
=S=> BGB 440 Except in the cases set out in section 281 ( 2 ) and section 323 ( 2 ) , it is also not necessary to specify a period of time if the seller has refused to carry out both kinds of cure under section 439 ( 3 ) or if the kind of cure that the buyer is entitled to receive has failed or cannot reasonably be expected of him . A repair is deemed to have failed after the second unsuccessful attempt , unless in particular the nature of the thing or of the defect or the other circumstances leads to a different conclusion .
=U4= Sec441 -- Section 441 Reduction of price
--
=S=> BGB 441. 1 Instead of withdrawing from the agreement , the buyer may , by declaration to the seller , reduce the purchase price . The ground for exclusion under section 323 ( 5 ) sentence 2 does not apply .
=S=> BGB 441. 2 If more than one person comprises either the buyer or the seller , price reduction may be declared only by all or to all of them .
=S=> BGB 441. 3 In the case of a price reduction , the purchase price is to be reduced in the proportion in which the value of the thing free of defects would , at the time when the contract was entered into , have had to the actual value . To the extent necessary , the price reduction is to be established by appraisal .
=S=> BGB 441. 4 If the buyer has paid more than the reduced purchase price , the excess amount is to be reimbursed by the seller . Section 346 ( 1 ) and section 347 ( 1 ) apply with the necessary modifications .
=U4= Sec442 -- Section 442 Knowledge of the buyer
--
=S=> BGB 442. 1 The rights of the buyer due to a defect are excluded if he has knowledge of the defect at the time when the contract is entered into . If the buyer has no knowledge of a defect due to gross negligence , the buyer may assert rights in relation to this defect only if the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing .
=S=> BGB 442. 2 A right registered in the Land Register must be removed by the seller even if the buyer is aware of it .
=U4= Sec443 -- Section 443 Guarantee of quality and durability
--
=S=> BGB 443. 1 If the seller or a third party gives a guarantee for the quality of the thing or that the thing will have a specified quality for a specified period ( guarantee of durability ) , then , if there is a claim under the guarantee , the buyer , notwithstanding his statutory claims , has the rights given by the guarantee upon the terms set out in the declaration of guarantee and in the relevant advertising in relation to the person who granted the guarantee .
=S=> BGB 443. 2 To the extent that a guarantee of durability has been given , there is a presumption that a material defect which appears during the guarantee period triggers the rights under the guarantee .
=U4= Sec444 -- Section 444 Exclusion of liability
--
=S=> BGB 444 The seller may not invoke an agreement that excludes or restricts the rights of the buyer with regard to a defect insofar as the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing .
=U4= Sec445 -- Section 445 Limitation of liability in the case of public auctions
--
=S=> BGB 445 If a thing is sold in exercise of a security right at a public auction in which it is described as a pledge , the buyer only has rights in respect of a defect if the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing .
=U4= Sec446 -- Section 446 Passing of risk and of charges
--
=S=> BGB 446 The risk of accidental destruction and accidental deterioration passes to the buyer upon delivery of the thing sold . From the time of delivery the emoluments of the thing accrue to the buyer and he bears the charges on it . If the buyer is in default of acceptance of delivery , this is equivalent to delivery .
=U4= Sec447 -- Section 447 Passing of risk in the case of sales shipment
--
=S=> BGB 447. 1 If the seller , at the request of the buyer , ships the thing sold to another place than the place of performance , the risk passes to the buyer as soon as the seller has handed the thing over to the forwarder , carrier or other person or body specified to carry out the shipment .
=S=> BGB 447. 2 If the buyer has given a particular instruction on the method of shipping the thing and the seller , without a strong reason , does not adhere to this instruction , the seller is liable to the buyer for the damage arising from this .
=U4= Sec448 -- Section 448 Costs of delivery and comparable costs
--
=S=> BGB 448. 1 The seller bears the costs of delivery of the thing , the buyer the costs of acceptance and of shipping the thing to a place other than the place of performance .
=S=> BGB 448. 2 The buyer of a plot of land bears the costs of the notarial recording of the purchase agreement and of the declaration of conveyance , the registration in the Land Register and the declarations necessary for registration .
=U4= Sec449 -- Section 449 Retention of title
--
=S=> BGB 449. 3 An agreement on retention of title is void to the extent that the passing of ownership is made subject to the satisfaction by the buyer of third-party claims , including , without limitation , those of an enterprise associated with the seller .
=U4= Sec450 -- Section 450 Excluded buyers in the case of certain sales
--
=S=> BGB 450. 1 When an object is sold by way of execution of judgment , the person instructed to carry out or manage the sale and the assistants used by him , including the recording clerk , may not purchase the object to be sold either for themselves in person or through another person or as the agents of another person .
=S=> BGB 450. 2 Subsection ( 1 ) above also applies to a sale other than by execution of judgment , if the order to sell the object has been given under a statutory provision authorising the principal to have the object sold for the account of another person , including , without limitation , sale of a pledge , sale authorised by sections 383 and 385 , and sale from an insolvency estate .
=U4= Sec451 -- Section 451 Purchase by excluded buyer
--
=S=> BGB 451. 1 The effectiveness of a purchase made in violation of section 450 and of the transfer of the object purchased is subject to the approval of the person taking part in the sale as obligor , owner or obligee . If the buyer requests a person taking part to make a declaration of ratification , section 177 ( 2 ) applies with the necessary modifications .
=S=> BGB 451. 2 If , as a result of refusal of ratification , a new sale is undertaken , the earlier buyer is liable for the costs of the new sale and for an amount by which the proceeds of sale are reduced .
=U4= Sec452 -- Section 452 Purchase of a ship
--
=S=> BGB 452 The provisions in this subtitle on the sale of plots of land apply with the necessary modifications to the sale of registered ships and ships under construction .
=U4= Sec453 -- Section 453 Purchase of rights
--
=S=> BGB 453. 1 The provisions on the purchase of things apply with the necessary modifications to the purchase of rights and other objects .
=S=> BGB 453. 2 The seller bears the costs of creation and transfer of the right .
=S=> BGB 453. 3 If a right comprising the right to possession of a thing is sold , the seller is obliged to deliver the thing to the buyer free of material and legal defects .
=U3= UTit2 -- Subtitle 2 Special types of purchase
--
=U4= Kap1 -- Chapter 1 Purchase on approval
--
=U5= Sec454 -- Section 454 Coming into existence of the purchase agreement
--
=S=> BGB 454. 1 In a purchase on approval or on examination , approval of the object purchased is at the discretion of the buyer . In case of doubt , the purchase agreement is entered into subject to the condition precedent of approval .
=S=> BGB 454. 2 The seller is obliged to permit the buyer to examine the object .
=U5= Sec455 -- Section 455 Approval period
--
=S=> BGB 455 An object purchased on approval or on examination may be approved only within the agreed period or , if no period has been agreed , only before the end of a reasonable period specified by the seller for the buyer . If the thing was delivered to the buyer for the purpose of approval or examination , his silence is deemed to be approval .
=U4= Kap2 -- Chapter 2 Repurchase
--
=U5= Sec456 -- Section 456 Coming into existence of the repurchase agreement
--
=S=> BGB 456. 1 If the seller has , in the purchase agreement , reserved the right of repurchase , the repurchase agreement comes into existence when the seller declares to the buyer that he is exercising the right of repurchase . The declaration is not subject to the formal requirements laid down for the purchase agreement .
=S=> BGB 456. 2 In case of doubt , the price at which the object was sold also applies to the repurchase .
=U5= Sec457 -- Section 457 Liability of the reseller
--
=S=> BGB 457. 1 The reseller is obliged to return to the repurchaser the purchased object with its accessories .
=S=> BGB 457. 2 If the reseller , before exercising the right of repurchase , was at fault for the deterioration or destruction of the purchased object or an impossibility of returning it that resulted in another way , or if he materially altered the purchased object , he is liable for the damage resulting from this . If the object deteriorated without the fault of the reseller or if it is only trivially altered , the reseller may not require the purchase price to be reduced .
=U5= Sec458 -- Section 458 Removal of third-party rights
--
=S=> BGB 458 If the original purchaser disposed of the purchased object before exercising the right of repurchase , he is obliged to remove the third-party rights created by this . A disposition that is made by execution of judgment or attachment or by the administrator in insolvency proceedings is equivalent to a disposition by the reseller .
=U5= Sec459 -- Section 459 Reimbursement of outlays
--
=S=> BGB 459 The reseller may demand reimbursement for outlays that he made on the purchased object before the resale to the extent that the value of the object is enhanced by the expenses . He may remove an installation which he has attached to the returnable thing .
=U5= Sec460 -- Section 460 Repurchase at estimated value
--
=S=> BGB 460 If the estimated value of the object purchased at the time of repurchase is agreed as the repurchase price , the reseller is not responsible for the deterioration or destruction of the purchased object or an impossibility of returning it that resulted in another way , and the repurchaser is not obliged to reimburse the outlays made .
=U5= Sec461 -- Section 461 More than one person entitled to repurchase
--
=S=> BGB 461 If more than one person is jointly entitled to the right to repurchase , the right may only be exercised in its entirety . If it has expired for one of the persons entitled or if one of them does not exercise his right , then the others are entitled to exercise the right of repurchase in its entirety .
=U5= Sec462 -- Section 462 Cut-off period
--
=S=> BGB 462 The right of repurchase may be exercised , in the case of plots of land , only before the end of thirty years from the date of the agreement of the reservation , and in the case of other objects , only before the end of three years from that date . If a period of time is specified for exercise of the right , this period replaces the statutory period .
=U4= Kap3 -- Chapter 3 Preemption
--
=U5= Sec463 -- Section 463 Requirements for exercise
--
=S=> BGB 463 A person entitled to the right of preemption in respect of an object may exercise the right as soon as the person obliged by it has entered into a purchase agreement relating to the object with a third party .
=U5= Sec464 -- Section 464 Exercise of the right of preemption
--
=S=> BGB 464. 1 Exercise of the right of preemption occurs by declaration to the person obliged . The declaration is not subject to the formal requirements laid down for the purchase agreement .
=S=> BGB 464. 2 When the right of preemption is exercised , the purchase takes effect between the person entitled and the person obliged , subject to the terms that the person obliged agreed with the third party .
=U5= Sec465 -- Section 465 Ineffective agreements
--
=S=> BGB 465 An agreement made by the person obliged with the third party which provides that the purchase is subject to the non-exercise of the right of preemption or which reserves for the person obliged the right to withdraw from the agreement in the event that the right of preemption is exercised is ineffective in relation to the person entitled to preemption .
=U5= Sec466 -- Section 466 Collateral performance
--
=S=> BGB 466 If the third party has agreed in the contract to render an act of collateral performance which the person entitled to preemption is unable to perform , the person entitled to preemption must pay the value of the collateral performance instead of rendering it . If the collateral performance cannot be assessed in money , the exercise of the right of preemption is excluded ; the agreement to render collateral performance is , however , not performed if the contract with the third party would have been entered into even without it .
=U5= Sec467 -- Section 467 Total price
--
=S=> BGB 467 If the third party purchased the object which is subject to the right of preemption together with other objects at a total price , then the person entitled to preemption must pay a proportionate part of the total price . The person obliged may demand that the preemption is extended to all things that cannot be separated without disadvantage to him .
=U5= Sec468 -- Section 468 Deferral of the purchase price
--
=S=> BGB 468. 1 If the third party is granted deferral of payment of the purchase price in the contract , the person entitled to preemption may claim the deferral only if he gives security for the amount deferred .
=S=> BGB 468. 2 If a plot of land is the subject matter of the preemption , there is no need to provide security to the extent that there has been an agreement to create a mortgage on the plot of land for the deferred purchase price , or a debt for which a mortgage on the land exists has been assumed and credited towards the purchase price . This applies with the necessary modifications if a registered ship or ship under construction is the object of the right of preemption .
=U5= Sec469 -- Section 469 Duty to notify , exercise period
--
=S=> BGB 469. 1 The person obliged must inform the person entitled to preemption without undue delay of the contents of the contract entered into with the third party . Notice by the third party replaces notice by the person obliged .
=S=> BGB 469. 2 The right of preemption for plots of land may be exercised only before the end of a period of two months after notice is received , and the right of preemption for other objects only before the end of a period of one week after notice is received . If a period of time is specified for exercise of the right , this period replaces the statutory period .
=U5= Sec470 -- Section 470 Sale to heir on intestacy
--
=S=> BGB 470 The right of preemption , in case of doubt , does not apply to a sale that is made to an heir on intestacy with a view to a future right of succession .
=U5= Sec471 -- Section 471 Sale in case of execution of judgment or insolvency
--
=S=> BGB 471 The right of preemption is excluded if the sale occurs by way of execution of judgment or from an insolvency estate .
=U5= Sec472 -- Section 472 More than one person with a right of preemption
--
=S=> BGB 472 If the right of preemption is held by more than one person jointly , it may be exercised only in its entirety . If it has expired with regard to one of the entitled persons or if one of them does not exercise his right , then the others are entitled to exercise the right of preemption in its entirety .
=U5= Sec473 -- Section 473 Non-transferability
--
=S=> BGB 473 The right of preemption is not transferable and does not pass to the heirs of the person entitled to it unless otherwise provided . If the right is limited to a specific period , then , in case of doubt , it is inheritable .
=U3= UTit3 -- Subtitle 3 Purchase of consumer goods
--
=U4= Sec474 -- Section 474 The concept of purchase of consumer goods
--
=S=> BGB 474. 1 Where a consumer buys a movable thing from an entrepreneur ( purchase of consumer goods ) , the following rules apply in addition . This does not apply to second-hand things that are sold at a public auction which the consumer may attend in person .
=S=> BGB 474. 2 Section 439 ( 4 ) applies to the purchase contracts regulated by this subtitle on proviso that benefits are not to be surrendered or substituted by their value . Sections 445 and 447 do not apply .
=U4= Sec475 -- Section 475 Deviating agreements
--
=S=> BGB 475. 1 If an agreement is entered into before a defect is notified to the entrepreneur and deviates , to the disadvantage of the consumer , from sections 433 to 435 , 437 , 439 to 443 and from the provisions of this subtitle , the entrepreneur may not invoke it . The provisions referred to in sentence 1 apply even if circumvented by other constructions .
=S=> BGB 475. 2 The limitation of the claims cited in section 437 may not be alleviated by an agreement reached before a defect is notified to an entrepreneur if the agreement means that there is a limitation period of less than two years from the statutory beginning of limitation or , in the case of second-hand things , of less than one year .
=S=> BGB 475. 3 Notwithstanding sections 307 to 309 , subsections ( 1 ) and ( 2 ) above do not apply to the exclusion or restriction of the claim to damages .
=U4= Sec476 -- Section 476 Shifting the burden of proof
--
=S=> BGB 476 If , within six months after the date of the passing of the risk , a material defect manifests itself , it is presumed that the thing was already defective when risk passed , unless this presumption is incompatible with the nature of the thing or of the defect .
=U4= Sec477 -- Section 477 Special provisions for guarantees
--
=S=> BGB 477. 1 A declaration of guarantee ( section 443 ) must be expressed simply and comprehensibly . It must contain a reference to the statutory rights of the consumer and a statement that they are not restricted by the guarantee , and the contents of the guarantee and all essential information required for asserting rights under the guarantee , including , without limitation , the duration and the area of territorial application of the guarantee protection as well as the name and address of the guarantor .
=S=> BGB 477. 2 The consumer may demand that the declaration of guarantee is given to him in text form .
=S=> BGB 477. 3 The effectiveness of the duty under the guarantee is not affected by the fact that one of the above requirements is not satisfied .
=U4= Sec478 -- Section 478 Recourse of the entrepreneur
--
=S=> BGB 478. 1 If an entrepreneur has been obliged to take back a newly manufactured thing sold by him because it is defective , or if the consumer has reduced the purchase price , it is not necessary for the entrepreneur to fix the period of time which would otherwise be necessary in order to enforce the rights set out in section 437 with regard to the defect asserted by the consumer against the entrepreneur who sold the thing to him ( supplier ) .
=S=> BGB 478. 2 Where a newly manufactured thing is sold , the entrepreneur may demand of his supplier reimbursement of the expenses which the entrepreneur had to bear in relation to the consumer under section 439 ( 2 ) , if the defect asserted by the consumer already existed upon the passing of the risk to the entrepreneur .
=S=> BGB 478. 3 In the case of subsections ( 1 ) and ( 2 ) above , section 476 applies , subject to the proviso that the period begins when the risk passes to the consumer .
=S=> BGB 478. 4 The supplier may not rely on an agreement made before the defect was notified to the supplier which , to the disadvantage of the entrepreneur , deviates from sections 433 to 435 , 437 , 439 to 443 or from subsections ( 1 ) and ( 3 ) above or from section 479 , if the obligee with the right of recourse is not given another form of compensation of equal value . Sentence 1 , notwithstanding section 307 , does not apply to an exclusion or restriction of the claim to damages . The provisions referred to in sentence 1 apply even if circumvented by other constructions .
=S=> BGB 478. 5 Subsections ( 1 ) to ( 4 ) above apply with the necessary modifications to claims of the supplier and of the other buyers in the supply chain against their sellers if the obligors are entrepreneurs .
=S=> BGB 478. 6 Section 377 of the Commercial Code [ Handelsgesetzbuch ] is unaffected .
=U4= Sec479 -- Section 479 Limitation of recourse claims
--
=S=> BGB 479. 3 The above subsections apply with the necessary modifications to claims of the supplier and the other buyers in the supply chain against their sellers if the obligors are entrepreneurs .
=U3= UTit4 -- Subtitle 4 Exchange
--
=U4= Sec480 -- Section 480 Exchange
--
=S=> BGB 480 The provisions relating to purchase apply with the necessary modifications to exchange .
|
